Tuesday, 26 July 2016

Judges are not perfect, but we expect them to approach their cases clinically and with detachment, interpreting them on their merits, uninfluenced by stereotypes around skin colour, age, or … gender.

Unfortunately, a new study in Psychiatry, Psychology and Law has analysed the sentencing remarks made by judges in domestic murder cases (defined as murder between heterosexual spouses) and found that they framed killings by men in far more lenient and forgiving terms than killings by women.

Guy Hall and his colleagues at Perth’s Murdock University looked at cases from the 2000s in the Australian states of Victoria and New South Wales. The team worked through nine judges’ sentencing remarks for male offenders, analysing the text qualitatively to find patterns and themes, stopping after nine cases as the themes firmed up. Against these nine cases, the team analysed remarks from five trials that involved female perpetrators. The sex of the judges is not specified but the accounts include plenty of references to "His honour" but none to "Her honour".

Sentencing remarks are given together with the court sentence itself, and are the judge’s reasons for choosing the sentence they did, using plain language to explain their reasons to the community, the victims, and the offender themselves.

When a man was in the dock, judges frequently talked about the offender's character, making references to endorsements from other authorities such as employers or community figures. They also emphasised the man’s suffering, such as anguish at being left by his wife. In fact, the mental state of male offenders seemed of great, sometimes peculiar interest to the ruling judges.

Hall’s team outline how remarks in eight of the nine male cases had an extensive description – "suffering from severe psychological distress", "acted as a man stressed and depressed, rather than as one in control" – and that one judge spent 11 of his 34 paragraphs of remarks discussing the offender’s mental state. Judges would do this even when they explicitly noted that this had little mitigatory relevance to the crime. Hall’s team also found cases of victim blaming, with one judge stating bluntly "your wife was the source of the conflict" – you may have resolved the conflict with lethal means, the judge seemed to be implying, but let the court be aware, she started it.

When a woman was in the dock, praise was rare and faint, for example one judge stated that a woman murderer "was clearly doing well in her studies". In contrast, negative references to character were frequent, citing issues such as "inability to pay her household debts", or that her crime indicated a "lack of concern for [her] children’s wellbeing" – an issue not raised when a man was the murderer.

Judges also brought into consideration the sexual conduct of the women offenders in the time period following the murders they committed, the relevance of which I struggle to see. The judges who presided over these cases sometimes sprinkled in some warmer character references – "good provider" or "honest, hard-working" … but these were for their (male) victims.

Perhaps the most striking language difference was how the judges reached for old notions of evil when describing women who kill men. In three of the five cases, the sentencing judge used the word wickedness – "your wickedness knew no bounds" – and one judge went fully biblical by describing the financial gain associated with the murder as "30 pieces of silver", drawing associations between a woman murdering a man, and a man murdering a god.

Hall’s team discuss the implications of the judges’ bias in terms of severity of sentencing, but it’s difficult to draw any conclusions as the sample is too small. It’s true that in the 14 cases under study, the two most severe punishments were for women, and the average female sentence was higher than the most severe sentence given to a man. More systematic work suggests that typically men get harsher sentences, although we should note that this past research didn’t focus on domestic murder, and that some of the suggested drivers for harsher male sentencing don’t hold in this case – for example, the "girlfriend theory" that women get lighter sentences when convicted together with a man, as they are considered more of a hanger-on than the driver of the crime.

What I find interesting about the sexism on display in the current study is how it is partly explained by the judge’s decisions about whether or not “general deterrence” is served by the sentence. General deterrence is the motive of punishing an individual to send a message to those who might consider doing the same thing. In several cases with male perpetrators, but none of the women, the judge explicitly mentioned general deterrence – denying its appropriateness – as they attributed the criminal action to the mental state of the man.

The judges’ message seems to be that it’s a sad fact of life that "good men" kill because of anguish due to conflict-initiating women, and there is no way to do anything about this, because it’s just the way the world works. Meanwhile, women who kill are wickedly calculating and a message should be sent to prevent other women getting the same idea. As this study does not attempt to match cases for context or severity, it is possible that this is an artefact of the particular crimes covered, and that another study might find wicked scheming men and hot-blooded women. But note, as Hall’s team do, how much the findings track broader stereotypes about male violence and tally with taboos about women acting against men.

Are these findings particular to Australian culture or is this something we would also see in the UK and elsewhere? This study should open a conversation, and further research into how judges treat domestic killers in the dock.